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Posted 7/1/14 at 8:38 AM | Trey Dimsdale, J.D.
The Supreme Court’s decision in Hobby Lobby v. Burwell no doubt represents a victory for the cause of religious freedom. If the Court’s minority had had one more vote the Green and Hahn families would be faced with some very difficult choices in the weeks to come. As it stands, for the first time the Supreme Court of the United States affirmed that a corporation is a “person” with rights to freely exercise religion. As a result of this decision entrepreneurs like the Greens and the Hahns need not forgo the benefits of the corporate form in order to conduct their businesses in accordance with the convictions of their consciences. This is good news, but it is important to keep a few things in mind when evaluating this decision.
First, despite the positive results in this case, we must be aware that this is a temporary victory, a single battle in a war with many more fronts. This case may have been the most prominent case involving the Affordable Care Act since NFIB v. Sebelius (the challenge to the Affordable Care Act that ultimately held it to be constitutional) , but it dealt with a very narrow issue that will not in any way impede the larger implementation of Obamacare. The case filed by the Little Sisters of the Poor that challenges the Department of Health and Human Services contraceptive mandate at issue in Hobby Lobby from a slightly different angle will be heard in the Fall. A challenge to IRS regulations working its way through the courts has promise as a spearhead to pave the way for individual states effectively to “opt out.” Hobby Lobby mayprove to be a momentary victory applicable to a relatively small number of businesses. FULL POST
Posted 6/10/13 at 12:34 PM | Trey Dimsdale, J.D.
Many people have followed the heart-wrenching case of Sarah Murnaghan for the past several weeks and most of those people have been hoping and praying for a miracle. Sarah is the 10-year old little girl who has been very near death in a Philadelphia children’s hospital awaiting a lung transplant. According to the rules that govern organ transplantation, Sarah is two years shy of the birthday that would allow her to be considered for an adult pair of lungs, so she is forced to wait for a rare set of pediatric lungs while patients in less dire need receive lungs from adult donors. The media has taken up Sarah’s cause and even the United States House of Representatives has gotten involved. Secretary of Health and Human Services Kathleen Sebelius, the government official with the authority to suspend the rules that keep Sarah at a disadvantage in her wait for organs, appeared by a House panel last week. Rep. Lou Barletta of Pennsylvania urged the Secretary, "I'm begging you. ... She has three to five weeks to live. Please suspend the rules.” Sebelius acknowledged that his is an "incredibly agonizing situation”, but reiterated that she cannot suspend the rules in this case. The family, however, appealed to a federal court on Wednesday, June 3 and the court ordered Sebelius to lift the application of the rule in this case.
As a parent, I sympathize with the Murnaghan family. No parent can blame them for seeking to move heaven and earth to save their daughter. In fact, their selfless dedication to their daughter is refreshing in a world that seems to marginalize children and allows (and often encourages) parents to kill their unborn children who have the same disease that imperils Sarah’s life. That being said, however, this is a rare case in which I agree with Kathleen Sebelius. I am fully aware that Sebelius’s course of action means certain death for Sarah, which means that it is not a course that should be taken easily or lightly, but it is one that needs to be taken dispassionately and distantly.
If Sebelius had lifted the rule in this one emotionally charged case, what then does she do in the next emotionally charged case? One unique thing about this topic is that every decision made about organ donation is a life and death decision. When ten people need an organ, only one can receive it and the other nine cannot. The rules are in place to ensure that all ten of those candidates have the best chance of survival. It may be that because one rather than the other receives the organ, someone will die, but the rules must strike a balance and be based on factors that are very unsettling to consider.
Organs are allocated in a way that considers several factors. A patient who likely will die of cancer within six months will not be a viable candidate for a heart transplant when the heart that they have would otherwise keep them alive for two more years. This is not to say that that patient’s life is not valuable. Of course it is, but the person who can be given the same heart and be expected to live for fifteen more years is equally as valuable and the organ has the chance to give more life, more happiness, and do more good in the second patient rather than the first. These are the types of decisions that are hard, that wreak of utilitarian paternalism, but are none-the-less necessary. Dispassionate and rigid rules which are based on likely outcomes insulate these terribly agonizing decisions from being made on the basis on irrlevant factors.
Had Sebelius granted the waiver, she would invited a flood of appeals for similar treatment and at the point that a rule has so many exceptions, the rule simply ceases to exist. The federal court in this instance did no favors to the system and in the wake of the court’s ruling, other similar motions have been filed for other patients. As dispassionate as judges and bureaucrats try to be, they are still human and can be moved by emotionally charged stories. The best system is one that regularly reviews medical statistics and forms rules for organ donation based on the assumption that the maximum prolongation of life is an unambiguous good. It is easy to advocate for a suffering and dying ten year old girl, but how many would rush to defend the appeal of a war criminal or serial killer seeking a bureaucratic or judicial exemption to the rule? Rules based on available technology, likely outcomes, and respect for all life will keep any of us from ever being forced to do either.
Posted 5/11/13 at 1:23 AM | Trey Dimsdale, J.D.
The New Yorker is one of America’s oldest and most venerable magazines with a proud past stretching back to before the Great Depression. In its archives, a reader can find short stories, articles, and cartoons by such icons of American literature as E.B. White, James Thurber, John Updike, and J.D. Salinger. The most recognizable feature of the magazine is arguably its illustrated covers that reflect social issues, popular themes, and prominent people. The edition for the week of May 13, 2013, the week following Mother’s Day, is no exception. The illustration on its cover features three children peering around the corner watching two women standing in a kitchen as they hold what appears to be a homemade Mother’s Day card which they have just discovered. The undeniable purpose of this cover is to present a normalized view of a same sex household: two women and their children celebrating Mother’s Day (or is it Mothers’ Day?) in the same way that any household would celebrate it. FULL POST
Posted 3/26/13 at 9:25 PM | Trey Dimsdale, J.D.
While I was a law student, I had the privilege of being a member of my law school’s National Moot Court Team and representing our school in moot court competition. Moot court is not like a mock trial, which is for the hot-headed, emotional, and shallow student (not really). Moot court is appellate advocacy—it is dignified, gentlemanly, and rigorous (all of which trial advocacy can and should be). In the artificially created world of moot court, the trial is over and you are the lawyer for one of the parties on appeal. It is your job to write the legal brief that defends one position or the other and it is your job to stand up and deliver a thirty minute defense of your mock client before a panel of mock judges. Whether it sounds like it or not, the whole process is extremely intense, very stressful, and more fun than nearly anything else that I can imagine.
In moot court cases, there are always two issues. One is a substantive issue known as “the merits.” This is usually an exciting issue that has the potential to shift the paradigm of the law. It is the issue that mock political pundits would comment on if they had the chance. The other issue is jurisdictional—the legal question turns on nuanced interpretations of obscure statutes or court decisions that do not quite fit the present circumstances. These issues are not particularly exciting to outside observers and, honestly, when a court disposes of a case on the basis of one of these types of issues in real life, there is usually public outcry about a murderer being released on a “technicality.” To my chagrin, I was pigeon-holed early as a “technicality” advocate. I always was given the jurisdictional, statutory, or otherwise mundane issue to brief and to argue. Ultimately, however, I ended up preferring these types of issues because they were free from emotion and demanded pure “lawyering skills” to advocate effectively. FULL POST
Posted 11/7/12 at 7:23 PM | Trey Dimsdale, J.D.
The issues of tax exemption for religious organizations and for the individual tax benefits that come with donations to religious organizations have a complex history. Most European nations have some sort of state supported church, so when the U.S. traces our tradition of treating religious organizations differently, we trace it back to complex circumstances that are often tied to free church vs. state church arguments. We don’t face that problem here in precisely the same way given that the United States does not have a state church, but there is no doubt that we inherited it when we inherited much in our legal and social systems. In order to be valid, every law that is enacted in this country must be enacted by a body with the authority to enact it. Additionally, no matter how attenuated the connection, there must be a “public policy” justification for the law. The just and justifiable law must encourage behavior that is beneficial for society, discourage behavior that is bad for society, or both. A law does not accomplish anything if it does neither. FULL POST
Posted 11/1/12 at 2:45 PM | Trey Dimsdale, J.D.
In the second Presidential Debate of this election cycle, President Obama was asked, “What has your administration done, or planned to do, to limit the availability of assault weapons?”
The President responded, “We’re a nation that believes in the Second Amendment, and I believe in the Second Amendment. We’ve got a long tradition of hunting and sportsmen and people who want to make sure they can protect themselves.” This response should be troubling to all Americans whether they are gun owners or not. The response that he gave reveals some fundamental problems with the President’s interpretation of our Constitution, his understanding of the nature of our rights, and his view of the role of government in our lives.
Posted 10/29/12 at 11:46 PM | Trey Dimsdale, J.D.
On Monday, October 29, a newborn baby boy was discovered abandoned in Corsicana, Texas. He had been stuffed into a bag and left on the door step of a family’s home. Thankfully, news reports confirm that he is doing well, although no details have been released about the chain of events that led to his abandonment. As of the time of this post, his mother has not been located and nothing more about him has been revealed.
There are a few things, however, that we can deduce from this situation. Firstly, whoever his mother is, she chose life instead of abortion. Secondly, we can presume that her circumstances are such that she was desperate and those circumstances drove her to do something rash. Given that we do not know who she is, it is impossible to tell whether this abandonment was planned or if she went into labor, delivered the child, and simply found the first inhabited structure where she could leave him. FULL POST
Posted 10/3/12 at 9:21 PM | Trey Dimsdale, J.D.
In Philippians, the Apostle Paul warns the church that we are in the midst of a “wicked and perverse generation.” For every generation of the church, this has been true, but in the lifetimes of most in the American churches, we have never seen a culture that is more hostile to Biblical truth. We are being pressured to accept the “inevitability” of the redefinition of marriage that would allow two men or two women to marry. We are being pressured to abandon the defense of the sanctity of life by acquiescing to the legal right for a woman to kill a child in her womb or the legal right for a family to kill a dying relative.
The state has appropriated the church’s obligation to care for the poor and in the process, created entitlement programs that plunder the property of citizens and result in cycles of government dependency and poverty. The wicked and perverse generation of which we are in the midst is killing its children and its elderly, redefining the family, and creating a toxic economic environment that hurts the poor and creates perverse disincentives. FULL POST
Posted 9/12/12 at 1:34 PM | Trey Dimsdale, J.D.
On July 1, a new law went into effect in Mississippi that presents the possibility that there will not be a single abortion clinic in the entire state of Mississippi. The new law requires that abortionists in the state to have hospital privileges and there are several Mississippi politicians who are on the record confirming that at least in part, the motivation for passing this law is the hope that it will force the Jackson Women’s Health Organization, the state’s only abortion clinic, to close. Mississippi is not alone in using regulation as an indirect tactic to limit the practice of abortion. Mississippi is also not alone in making itself a target of pro-abortion groups and the law in question has already been challenged in the United State District Court and the battle over whether the law will stand is not yet over. Currently, the clinic is still open while the enforcement of the law has been temporarily delayed by a judge to give the clinic time to comply. FULL POST
Posted 8/17/12 at 2:31 PM | Trey Dimsdale, J.D.
In the days following September 11, 2001 terrorist attacks, televangelist Pat Robertson claimed that the ACLU largely was to blame for the attacks because of their support of homosexuality and other sinful behavior. In the weeks following Hurricane Katrina in 2005, he said that the hurricane was God’s judgment on a city that had tolerated gays and lesbians. In 2010, Robertson blamed a people who had made a deal with the devil for the earthquake that ravaged their already poor country. Last year, he stated that it would be understandable, if not permissible, for a man to divorce his wife whose mind was ravaged with Alzheimer’s because she was already, in some sense, gone. Yesterday, Robertson embarrassed Christians even further when he took shots at the most vulnerable among us—orphaned children.
A viewer who is the mother of three girls, all of whom have been adopted from overseas, wrote in to The 700 Club and told of her experience with dating men who don’t want to date her once they find out that her children are not her biological children and that they have been adopted from orphanages overseas. Robertson’s co-host immediately responded that those men are “dogs”, but Robertson interjected. He said that these men were not wrong. They shouldn’t be expected to take on the “United Nations” for their family. He recounted the story of a friend who had adopted a child from Columbia who grew up “weird” and stated the very obvious truth that we really have no idea what has happened to those children before they arrive here. Many have been the victims of physical, sexual, and emotional abuse and most have been undernourished. All of these things can have a devastating impact on the future development of these children and according to Robertson, no man is obligated to assume another person’s problems. FULL POST